Excerpt:.....that the petitioner should be dismissed from government service. then, on the 7-2-1955 the chief secretary passed orders dismissing the petitioner from government service, and this order was communicated to him on the 8-2-1956. 3. it will be observed that the provision of rule 55 of the civil services (classification, control and appeal) rules and also the requirements of article 311(2) of the constitution have been fully satisfied in the present case. (1) in the second notice dated 6-1-1955 the nature of punishment proposed to be inflicted was not clearly specified and this has caused prejudice to the petitioner. in the second notice dated 6-1-1955 he was called upon to explain 'why the punishment proposed should not be inflicted'.doubtless it would have been much better if, in..........joint secretary to the government of orissa, cabinet (planning) department under the orders of the chief secretary who is the appointing authority of the petitioner (vide extract from file no. estab. 81 of 1954). along with the aforesaid two charges an extract from the report of the under-secretary containing the facts leading to the charges was also sent to the petitioner and he was further told that if he wished to be heard in person he would be given an opportunity. the departmental enquiry was held by mr. dave in accordance with the provisions of rule 55 of the civil services (classification, control and appeal) rules, the witnesses were examined in the presence of the petitioner and he was given full opportunity to examine them. the petitioner was also given facilities to examine.....

Judgment:

Narasimham, C.J.

1. This is a petition under Article 226 of the Constitution by a Lower Division assistant in the Orissa Secretariat, against the order of the Chief Secretary dated 7-2-1955, dismissing him from Government service.

2. On the 24-7-1954 the petitioner was placed under suspension and the following two charges were framed against him:

'(1) On 17-7-1954 you disobeyed the official orders of Shri B. C. Mathur, I. A. S. Under-Secretary, Cabinet (Planning) Department to work beyond office hours to attend to urgent and immediate work, in contravention of Rule 12(a) of the Secretariat Instructions.

It would appear from Annexure B filed by the State of Orissa that the proceedings against the petitioner were drawn up by Mr. J. A. Dave, Joint Secretary to the Government of Orissa, Cabinet (Planning) Department Under the orders of the Chief Secretary who is the appointing authority of the petitioner (vide extract from File No. Estab. 81 of 1954). Along with the aforesaid two charges an extract from the report of the Under-Secretary containing the facts leading to the charges was also sent to the petitioner and he was further told that if he wished to be heard in person he would be given an opportunity. The departmental enquiry was held by Mr. Dave in accordance with the provisions of Rule 55 of the Civil Services (Classification, Control and Appeal) Rules, the witnesses were examined in the presence of the petitioner and he was given full opportunity to examine them. The petitioner was also given facilities to examine defence witnesses on his behalf. After completing the enquiry, Mr. Dave recorded a finding to the effect that the charges were well proved and suggested that the petitioner should be dismissed from Government service. He then submitted a note to the Chief Secretary on 6-7-1955 enclosing along with that note his findings in respect of the charges. The Chief Secretary by his order dated the 5-1-1955, agreed with the findings of Mr. Dave and also with his suggestion that the petitioner may be given an opportunity to show cause why the punishment of dismissal which had been tentatively decided upon should not be inflicted.

Then, Mr. Dave sent a copy of the findings to the petitioner with his letter No. 48 dated 6-1-1955 and called upon him

'to explain by the 17-1-1955 as to why the punishment proposed should not be inflicted'.

The petitioner did not submit any further explanation though on the 13-1-1956 and the 18-1-1956 he was given sufficient notice to submit a fresh explanation and was also specially informed that if he desired to be heard in person his prayer would be granted. Then, on the 7-2-1955 the Chief Secretary passed orders dismissing the petitioner from Government service, and this order was communicated to him on the 8-2-1956.

3. It will be observed that the provision of Rule 55 of the Civil Services (Classification, Control and Appeal) Rules and also the requirements of Article 311(2) of the Constitution have been fully satisfied in the present case. Specific charges were formulated against the petitioner. He was first called upon to show cause why he should not be 'dismissed or otherwise punished'. He was also informed that if he desired to be heard in person he would be given an opportunity. He never asked for a personal hearing, but contendedhimself with submitting a written explanation. The departmental enquiry was conducted in a fair manner and sufficient opportunity for cross-examining the witnesses and adducing defence evidence was given.

Thereafter, a finding to the effect that the charges were established was recorded, after discussion of the evidence, the tentative punishment of dismissal was decided upon the petitioner was given full opportunity to show cause why the punishment of dismissal should not be inflicted. He did not show any cause against the proposed punishment though extension of time was granted for the purpose and eventually the Chief Secretary dismissed him from service. In exercise of our extraordinary jurisdiction under Article 226 of the Constitution we cannot obviously go into the merits of the findings and discuss whether the charges were fully established or whether the punishment was too severe considering the nature of the charges. These are matters regarding which the appointing authority's decision should be taken as final.

4. Mr. A. Das, on behalf of the petitioner however, urged the following three points:

(1) In the second notice dated 6-1-1955 the nature of punishment proposed to be inflicted was not clearly specified and this has caused prejudice to the petitioner.

(2) The findings of Mr. Dave are dated 6-1-1955 (vide Annexure A filed by the State of Orissa) whereas the Chief Secretary's orders agreeing with the findings and with the issue of the second notice under Article 311(2) of the Constitution are dated 5-1-1955. This discrepancy in the date is sufficient to show that all the papers were not placed before the Chief Secretary when he tentatively decided on the punishment to be inflicted on the petitioner.

(3) By virtue of Rule 4(1) of the Disciplinary Proceedings (Administrative Tribunal) Rules 1951, as amended, the petitioner's case should have been referred to the Tribunal for enquiry and the procedure prescribed in the said rules should have been followed.

5. As regards the first point I should observe that in the preliminary notice dated the 24-7-54 in which the charges were formulated, the petitioner was called upon to show cause as to why he 'should not be dismissed or otherwise punished''. In the findings of Mr. Dave dated 6-1-1955, however, it was suggested that he should be dismissed from service. In the second notice dated 6-1-1955 he was called upon to explain 'why the punishment proposed should not be inflicted'. Doubtless it would have been much better if, in the second notice Mr. Dave had expressly stated that the punishment of dismissal had been tentatively decided upon and asked the petitioner to show cause why that punishment may not be inflicted. Mr. A. Das urged that the petitioner was under the bona fide impression that the 'punishment proposed', as mentioned in the second notice, was the punishment proposed in the preliminary notice dated 24-7-1954 which merely called upon the petitioner to show cause why he may not 'be dismissed or otherwise punished'.

He urged that the petitioner was not aware on receipt of the second notice that the punishment proposed was the punishment of dismissal and not any lesser punishment. But this argument cannot be sustained because along with the second notice a copy of the findings of Mr. Dave was forwarded to the petitioner, and on the last portion of these findings Mr. Dave had clearly stated that in his opinion the appropriate punishment would be dismissal from Governmentservice. Hence, notwithstanding the omission, in the second notice, to describe in detail the tentative punishment proposed, I think there was no room for ambiguity and the petitioner on seeing the copy of the findings enclosed with that notice must surely have become aware that the punishment proposed was dismissal and nothing e)se.

6. It is true that there is a slight discrepancy in the date of the finding as given in Annexure A filed by the State and the date of Chief Secretary's signature, as given in Annexure C. The Chief Secretary's signature is dated the 5-1-1955 whereas the findings signed by Mr. Dave are dated the 6-1-1955. The note of Mr. Dave with which the Chief Secretary agreed (Annexure C) is also dated the 5th January 1955. Therein Mr. Dave has pointed out that he has recorded his findings in the case and suggested the punishment of dismissal. Similarly, in the affidavit filed by Mr. Natarajan, Deputy Secretary, Cabinet (Planning) Department it was stated that the report of Mr. Dave was submitted to the Chief Secretary which contained a record of his findings and the Chief Secretary agreed with those findings. There is no counter-affidavit on behalf of the petitioner challenging this statement.

It must therefore be held that though the findings are dated the 6th January 1955 they were ready even on the 5th January 1955 and were placed before the Chief Secretary on that day, and it was after perusing these findings that the Chief Secretary was satisfied that the charges were proved and then decided tentatively on the punishment. In the absence of any further material from the petitioner, and in view of the affidavit filed by Mr. Natarajan, I am not prepared to hold that the Chief Secretary wrote the words 'I agree' on the 5th January 1955 in the relevant file when the findings were not before him.

7. The third point raised by Mr. Das is also equally untenable. It has been held in Baishnab Charan v. State of Orissa, O. J. C. No. 91 of 1955: (AIR 1957 Orissa 70) (A), decided by a Division Bench of this Court, that the provisions of Rule 4(1) of the Disciplinary proceedings (Administrative Tribunal) Rules are discretionary, and it is at the option of Government to refer the case of misconduct on the part of a non-gazetted Government servant to the Tribunal for enquiry or else to follow the procedure prescribed by Rule 65 of the Civil Services (Classification, Control and Appeal) Rules.

Mr. Das however urged that the case of the petitioner should first have been considered by Government and a decision arrived at as to whether it should be referred to the Tribunal or not, and that in the absence of any evidence to show that this question was specifically considered by Government, the entire proceedings would be vitiated. I am not prepared to accept this contention. Once it is held that Rule 4(1) of the Disciplinary Proceedings (Administrative Tribunal) Rules is discretionary and not mandatory, it cannot be urged that the case against every non-gazetted Government servant, against whom misconduct is alleged, should be considered specifically on the question as to whether the departmental enquiry should be held under the aforesaid Rules or in accordance with the provisions of Rule 55 of the Civil Services (Classification, Control and Appeal) Rules.

There is no provision in the Disciplinary Proceedings (Administrative Tribunal) Rules requiring that allegations of misconduct against every non-gazetted Government servant should first be considered by Government and a decision arrived at as to whether the departmental enquiry against him should be held under those Rules, or else whether the normal procedure prescribed in R, 55 ofthe Civil Services (Classification, Control and Appeal) Rules should be adopted. The matter rests entirely within the discretion of Government.